Oh those contentious parents who make child rearing a battle ground. In one of the most vociferous battles that I have encountered as of late is that of Paula Rorer Hubbard and William Shane Rorer. Mother was found to be in contempt of Father's parenting time and appealed. The appellate panel rendered its decision on Monday 14 April 2014 in an unpublished opinion. The appeal arose under Mother's argument that she was found to be in contempt of court and sentenced to a term of confinement, suspended, based upon inadmissible evidence and an improperly imposed jail sentence. The case originated in the Warrick Circuit Court where the Honorable David O. Kelley, Judge, presided. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Mother was found in contempt for her failure to facilitate parenting time between the parties' adolescent daughter and Father which had been recently reinstated following a three year lapse. Mother and Father had one daughter during their marriage which was dissolved in April 2003. After years of disputes between Mother and Father regarding custody and parenting time, the trial court suspended parenting time between Father and Daughter in September 2010. However, on 01 August 2013, the trial court ordered that Father was entitled to parenting time with Daughter who was then fourteen years of age.
Neither parent enters this latest fray with clean hands. The trial court observed that Parents have an “inability and refusal to co-parent effectively.” The disputes are deeply rooted and the duration of the battle appears to mystify Judge Kelley as noted:
The anger they share for each other and the desire to “get the best of the other” is much more important to each parent than meeting their responsibility to rear a child together in a responsible manner. There is plenty of blame to go around for each parent and a recitation of the offenses of each parent would serve no good purpose. Collectively, however, it is clear to the Court that the child and her overall welfare are secondary to the parents’ “personal war.” Given the number of years it has gone on one would think the parents would grow weary of combat but it appears to have worsened rather than improving.
The court has recognized daughter's manipulation of the parents' conflict:
[Daughter] has recognized this conflict and seized the opportunity to “drive the bus.” What teenager would pass on the opportunity to be in complete control of her life? It is clear to the Court that her rejection of her father is pleasing to her mother and continued rejection will guarantee a continued flow of favorable treatment from the mother.
Judge Kelley exemplifies the hopelessness in the predicament that judges face with these high conflict parents. As so many have similarly expressed to me, Judge Kelley articulated his feelings in this manner:
Numerous mental health professionals have not been able to address the parents’ issues and the Court has absolutely no expectation that it can make things work smoothly. The Court has considered drafting specific measures that would direct each parent how to be an effective parent but the Court doubts that either party would follow those directives and also it is not [the] Court’s responsibility to rear the child.
The order that went into effect on 01 August 2013 was initially breached at Mother's first opportunity. On 07 August 2013, Daughter initially refused to participate in parenting time with Father. Ultimately, however, she cooperated after the police arrived. On 09 August 2013, she again refused to participate in parenting time. On 12 August 2013, Father wasted no time in filing a petition for contempt against Mother. Father alleged that Mother “has done everything in her power to attempt to discourage [Daughter] from seeing” Father.
At hearing Father produced a police officer who had responded to the 07, 09, and 14 August parenting time exchanges. Mother objected to testimony and documentary evidence of the 14 August incident arguing that it fell outside of the allegations plead two days earlier. On its face to any experienced appellate litigator this is merely cumulative evidence that demonstrates a pattern. Thus it will not be held as a basis for reversal. Mother was clearly already on notice about these allegations. The Court so found stating that the Officer’s “testimony and Exhibit A were merely cumulative of the other evidence, and any error in the admission of the testimony and Exhibit A was harmless.” Thus the Court found that “[w]e disregard errors in the admission of evidence as harmless error unless they affect the substantial rights of a party.”[fn1]
In finding Mother in contempt the Court found “from the evidence that the Mother has failed to take a positive or active role in encouraging the child to engage in visitation and is allowing the child to decide if she wants to visit.” It has already been observed that children are not to be put in the position of or allowed to make decisions regarding participation in parenting time.
The Indiana Parenting Time Guidelines provide:
If a child is reluctant to participate in parenting time, each parent shall be responsible to ensure the child complies with the scheduled parenting time. In no event shall a child be allowed to make the decision on whether scheduled parenting time takes place.
Commentary:
In most cases, when a child hesitates to spend time with a parent, it is the result of naturally occurring changes in the life of a child. The child can be helped to overcome hesitation if the parents listen to the child, speak to each other and practically address the child’s needs.
Parents should inquire why a child is reluctant to spend time with a parent. If a parent believes that a child’s safety is compromised in the care of the other parent, that parent should take steps to protect the child, but must recognize the rights of the other parent. This situation must be promptly resolved by both parents. Family counseling may be appropriate. If the parents cannot resolve the situation, either parent may seek the assistance of the court.[fn2]
Mother failed in her duty to promote a positive parent-child relationship between Father and Daughter as well as failing to facilitate Father's parenting time. Evidence elicited at the hearing indicated that at the 07 August parenting time exchange, Mother engaged in the alienating tactic of crying and hugging Daughter when Daughter was ready to leave with Father. At the 09 August parenting time exchange, Mother would not get out of the vehicle and only cracked her window to talk to Father. A family friend testified that she never heard Mother say anything that encouraged Daughter to participate in the parenting time. Father presented evidence that Mother failed to ensure that Daughter complied with the scheduled parenting
Mother and Father have harmed their daughter to the point that when after three years of absence from the life of her Father she refused to see him. Social science research shows significant benefits to children when non-custodial fathers remain involved in their lives.[fn3] Yet, both parents allowed their ongoing disdain for each other to poison the well from which their daughter drinks. Rather than provide competent nurturing and guidance to their daughter they have instilled in her that she has no intrinsic value but, rather, is only a prize to be fought over and won. Both of these parents are abusive to their daughter.
As for the contempt citation, the primary objective of a civil contempt proceeding is not to punish the contemnor but to coerce action for the benefit of the aggrieved party.[fn4] A contempt order that neither coerces compliance with a court order nor compensates the aggrieved party for loss and does not offer an opportunity for the recalcitrant party to purge himself may not be imposed in a civil contempt proceeding. Thus, Mother holds the keys to her freedom by ensuring that she complies with the court order and facilitates Father's parenting time.
In nearly six years of working nearly exclusively on high conflict parenting child custody cases I have been able to observe a patter in these relationships. The hostile aggressive parent needs a partner in the conflict and ensuing battle. That partner is the other parent. This is not to say that both parents share equally in the blame or initiate the offending actions. It must be acknowledged though, as I have seen, that both parents play a role in perpetuating the conflict. This conflict is mitigated by creating a new concept of the parent-parent and parent-child relationships which ultimately benefit the child.
notes
1] Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010)
2] Ind. Parenting Time Guideline § I(E)(3) (emphasis added).
3] E.g., Marcia J. Carlson & Katherine A. Magnuson, Low-Income Fathers’ Influence on Children, In re Matter of E.M. And El.M. (Ind. 2014) citing 635 Annals of Am. Acad. Pol. & Soc. Sci. 95, 107 (2011)
4] In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011).
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Tuesday, April 15, 2014
Contempt of Court Jail Sentence when Child Refuses Parenting Time Upheld - Indiana Court of Appeals
Wednesday, March 19, 2014
Shared Parenting Time, Joint or Sole Legal Custody, and Joint or Primary Physical Custody - Indiana
19 March 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Today I present to you some of the aspects and considerations of parenting time, legal custody, and physical custody in Indiana and the effects these have on children. To begin I will provide definitions to some of the terms that are used in relation to child custody.
Legal custody is the designation of who shall decide the major life practices of the child such as health care, religious activities, and education.
Physical custody is the determination of how a child's time shall be divided between the parents or other custodians.
Parenting time is the contemporary term applied to physical custody that replaces “visitation” so as to embody the spirit that a parent's time with his or her children embraces all of the attendant responsibilities of parenting including social and emotional development.
Primary physical custodian is the parent who has the child for the most significant portion of time.
Shared Parenting is the term applied to parents who exercise a division of time with the children that allocates no less than generally 35-45% to each parent depending upon the jurisdiction or general practices of the court.
Sole custodian is the designation given to the person who is granted authority to singly make the major life decisions of the child such as health care, religious activities, and education.
I am presenting the relevant statutes first and will then refer to them by code in subsequent commentary. In Indiana the decision on legal custody and parenting time in dissolution of marriage are as follows;
IC 31-17-2-8 - Custody order
Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parent or parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parent or parents;
(B) the child's sibling; and
(C) any other person who may significantly affect the child's best interests.
(5) The child's adjustment to the child's:
(A) home;
(B) school; and
(C) community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter.
As added by P.L.1-1997, SEC.9. Amended by P.L.96-1999, SEC.7;P.L.133-2002, SEC.32.
IC 31-17-2-13 - Joint legal custody; finding required for award
Sec. 13. The court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child.
As added by P.L.1-1997, SEC.9.
IC 31-17-2-15 - Joint legal custody; matters considered in making award
Sec. 15. In determining whether an award of joint legal custody under section 13 of this chapter would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint custody;
(2) whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare;
(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint custody;
(5) whether the persons awarded joint custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so; and
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint custody.
As added by P.L.1-1997, SEC.9. Amended by P.L.3-2008, SEC.237.
IC 31-17-2-17 - Custodian may determine child's upbringing
Sec. 17. (a) Except:
(1) as otherwise agreed by the parties in writing at the time of the custody order; and
(2) as provided in subsection (b);
the custodian may determine the child's upbringing, including the child's education, health care, and religious training.
(b) If the court finds after motion by a noncustodial parent that, in the absence of a specific limitation of the custodian's authority, the child's:
(1) physical health would be endangered; or
(2) emotional development would be significantly impaired;
the court may specifically limit the custodian's authority.
As added by P.L.1-1997, SEC.9.
In Indiana the decision on legal custody and parenting time in paternity cases is governed by the Indiana Code as follows;
IC 31-14-13-2.3 - Joint legal custody; finding required for award; factors considered in making award
Sec. 2.3. (a) In a proceeding to which this chapter applies, the court may award legal custody of a child jointly if the court finds that an award of joint legal custody would be in the best interest of the child.
(b) An award of joint legal custody under this section does not require an equal division of physical custody of the child.
(c) In determining whether an award of joint legal custody under this section would be in the best interest of the child, the court shall consider it a matter of primary, but not determinative, importance that the persons awarded joint legal custody have agreed to an award of joint legal custody. The court shall also consider:
(1) the fitness and suitability of each of the persons awarded joint legal custody;
(2) whether the persons awarded joint legal custody are willing and able to communicate and cooperate in advancing the child's welfare;
(3) the wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age;
(4) whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody;
(5) whether the persons awarded joint legal custody:
(A) live in close proximity to each other; and
(B) plan to continue to do so;
(6) the nature of the physical and emotional environment in the home of each of the persons awarded joint legal custody; and
(7) whether there is a pattern of domestic or family violence.
As added by P.L.95-2009, SEC.2.
IC 31-14-13-2 - Factors of custody determination
Sec. 2. The court shall determine custody in accordance with the best interests of the child. In determining the child's best interests, there is not a presumption favoring either parent. The court shall consider all relevant factors, including the following:
(1) The age and sex of the child.
(2) The wishes of the child's parents.
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child's parents;
(B) the child's siblings; and
(C) any other person who may significantly affect the child's best interest.
(5) The child's adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) of this chapter.
As added by P.L.1-1997, SEC.6. Amended by P.L.96-1999, SEC.2; P.L.133-2002, SEC.24.
IC 31-14-14-1 - Parenting time rights of noncustodial parent; in chambers interview of child; rebuttable presumption for supervised parenting time
Sec. 1. (a) A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might:
(1) endanger the child's physical health and well-being; or
(2) significantly impair the child's emotional development.
(b) The court may interview the child in chambers to assist the court in determining the child's perception of whether parenting time by the noncustodial parent might endanger the child's physical health or significantly impair the child's emotional development.
(c) In a hearing under subsection (a), there is a rebuttable presumption that a person who has been convicted of:
(1) child molesting (IC 35-42-4-3); or
(2) child exploitation (IC 35-42-4-4(b));
might endanger the child's physical health and well-being or significantly impair the child's emotional development.
(d) If a court grants parenting time rights to a person who has been convicted of:
(1) child molesting (IC 35-42-4-3); or
(2) child exploitation (IC 35-42-4-4(b));
there is a rebuttable presumption that the parenting time with the child must be supervised.
(e) The court may permit counsel to be present at the interview.
If counsel is present:
(1) a record may be made of the interview; and
(2) the interview may be made part of the record for purposes of appeal.
As added by P.L.1-1997, SEC.6. Amended by P.L.15-2004, SEC.1; P.L.68-2005, SEC.19; P.L.95-2009, SEC.4.
The distinction between parenting time and legal custody recognizes that each provides a different set of benefits and objectives. In dissolution 31-17-2-8 provides the eight factors that a judicial officer must consider when making a parenting time decision. These include such things as the child's relationship with the parents and other people who can significantly affect the child's well-being, the child's adjustment to the child's home, school and community, and most importantly the child's wishes. 31-17-2-15 provides that when considering legal custody a judicial officer must consider the fitness of each parent, whether they agree to the custody arrangement, and interestingly the wishes of the child. 31-17-2-17 provides that the person or persons awarded legal custody “may determine the child's upbringing, including the child's education, health care, and religious training.”
Thus, parenting time is about developing, facilitating and promoting the parent-child relationship while [legal] custody is an administrative process that can be undertaken from afar and, although not practical, without interaction with the child. The interesting aspect of 31-17-2-15 is that it provides for the wishes of the child. While married parents may also consider the wishes of their children in these matters most certainly do not provide their children the authority to decide whether to attend school, practice hygienic activities, or observe parents religious decisions.
Granting to parents an award of joint legal custody allows for input from two decision makers - two researchers, two contemplative minds, two subjective viewpoints - providing input into the decision making process. Much as a patient may seek a second opinion from a medical professional before undergoing a major procedure children should also be entitled to second opinions before their health, education, or religious determinations are made for them. Setting aside these matters, it is important for children regardless of who their legal custodians are that they maintain a healthy and meaningful interaction with each parent. This is the purpose of establishing parenting time.
There is a basic premise underlying the opinions in the legal community that stability and continuity of care is in the best interest of the child.[fn1] However, as applied there is often not continuity in care as most often children experience a decrease in the time they spend in the care of their fathers. Much of this is due to a political agenda that has influenced policy makers.
Research and my observations have demonstrated that sole custody and especially primary physical custody requests are associated with exacerbation or creation of conflict. Courts are reticent to award joint legal custody and Shared Parenting arrangements once conflict erupts. This in a way becomes a self-fulfilling prophecy. However, when the frequency of transitions is reduced, and high conflict parents avoid direct contact with each other during parenting time exchanges and shield their children from their conflict, the negative effects disappear. I contend though that conflict is a normal part of everyday life, and to completely shield children from normal conflict may be depriving them of an opportunity to observe resolution of disputes, healing and reconciliation.
The Indiana Parenting Time Guidelines provide guidance for the purpose of parenting time.
A child whose parents live apart has special needs related to the parent-child relationship. A child's needs and ability to cope with the parent's situation change as the child matures. Parents should consider these needs as they negotiate parenting time. They should be flexible and create a parenting time agreement which addresses the unique needs of the child and their circumstances. Parents and attorneys should always demonstrate a spirit of cooperation. The Indiana Parenting Time Guidelines are designed to assist parents and courts in the development of their own parenting plans. In the event the parties cannot create their own parenting time agreement, these guidelines represent the minimum time a parent should have to maintain frequent, meaningful, and continuing contact with a child.
When confronted with litigation involving child custody resulting from dissolution of marriage or a paternity action it is essential that you know the differences and purposes surrounding the legal and physical custody of the children. These two dimensions must be harmonized as decisions or agreements that recognize the child's needs and how these two facets of custody interplay with that are essential to the child's well-being and the probability that the decision will endure. Neither legal custody decisions or parenting time arrangements should be made in isolation. These considerations should be juxtaposed and integrated with each other.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Monday, March 10, 2014
Understanding when a child tells you that you are doing wrong by alienating the other parent - Parental Alienation
10 March 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Over the weekend I performed a forensic assessment of a boy who is age 7. He was presented with “difficulties in cooperation, completing assignments, and being attentive in class.” His parents have been involved in years of ongoing litigation. The mother relocated the children to another town, changed their school, and has alienated them from the father. The father sought my assistance in the discipline and schooling problems.
In doing an assessment of a child this age I ask that the child write a story as instructed as follows:
Write a story about what it would be like if you were the President of the United States. Who would work in the White House with you and what would you have your parents do as jobs? What rules would you establish and what would happen to people who didn't follow your rules?
This boy's story revealed some very telling information.
~ [child] wanted his White House to be located halfway between the homes of his mother and father.
~ The job for his father was to be a helper or advisor to him.
~ The job for his mother was to be “cleaning up dog poo”
~ The punishment for people who would not do what [child] wanted could escalate to having to “clean up horse poop with their hands.”
This boy clearly wants to be close to both parents. He obviously wants the counsel of the father who is very actively involved in the development of the child. The similarity between the job for mother and punishment for those who do not do as the boy wishes clearly indicates a hostility toward the mother. This is reflective of what I wrote about in Self-Imposed Parental Alienation in November of last year. In that I wrote;
The tragedy of self-imposed parental alienation is that the child generally has a healthy parent-child relationship with the targeted parent impeded by the instigating parent, but this also can create an enduring hostility toward that instigator.
Children are not blind to the dynamics of parental conflict. Throughout my years of observing a staggering amount of high conflict cases, often with elements of parental alienation, I have seen the result most often be the child turning against the instigating parent.
For those who would target the other parent in a programme of alienation it is worth considering whether the gain you may achieve from some type of emotional satisfaction derived from the belief that you may be winning the affections of the child is worth damaging the long-term relationship.
For those of you who are the targeted parent this should be able to provide to you some inspiration to parent the best you can, not retaliate, and enjoy a stronger relationship with your child in the future.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Thursday, February 27, 2014
My new article on Shared Parenting provides an intersectional review of a consensus report by Richard A Warshak and the Woozle Effect by Linda Nielsen along with my clinical observations
27 February 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Nielsen has published two books related to parent-child relationships. They are Between fathers and daughters: How to improve your adult relationship (2011) and Father-Daughter Relationships: Contemporary research and Issues (Routledge, 2012) which are available through her website. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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I have recently completed an article titled Correcting misconceptions on Shared Parenting for children under age 4 years. A review of a consensus report by Richard A Warshak and the Woozle Effect by Linda Nielsen. An Article for parents, practitioners and policy makers regarding parenting time which dispels much of the falsehoods surrounding Shared Parenting. Here I have provided a synopsis and a few highlights.
Two recent articles when taken together demonstrate that opposition to Shared Parenting by policymakers and judicial officers is not supported by current research but may be supported by misrepresentations of the data. The first article, Woozles: Their Role in Custody Law Reform, Parenting Plans, and Family Court, comes from Linda Nielsen, Department of Education, Wake Forest University who reminds us of the “woozle effect” which was popularized by a Domestic Violence researcher, Richard Gelles. The woozle effect as Gelles saw it was the misrepresentation of research findings to support a particular political purpose. The effect is borne of tenuous claims or those only partially supported by the empirical evidence which ignore that which does not support the agenda but is then applied much more broadly as it is repeated and cited beyond its original scope. The second article, Social Science and Parenting Plans for Young Children: A Consensus Report by Richard A Warshak details how the lack of clinical support for Shared Parenting that much of the papers, data, and presumptions supporting policies against Shared Parenting seem to have were a result of being tainted by the woozle effect.
While Nielsen referred to the broad topic of public policy in general in her article she did remind us that family law is an area in which woozling might be especially likely to occur: Quoting Johnson in support, “Distortions and misuses of social science data in family law matters derive partly from the political nature of the issues and from gender wars.”
In his article Warshak presented the result of a two year analysis of the various reports relating to early childhood parenting by separated parents. Warshak's stated purpose is “to provide the family court system — including lawmakers, mediators, decision-makers, parents, guardians ad litem, child custody evaluators, and therapists – with an overview of the research on parenting plans for children under the age of four years whose parents live apart, and to provide empirically supported guidelines that reflect a consensus among leading researchers and practitioners about the implications of that research for policy and practice.”
A multidisciplinary group of experts, sponsored by the U.S. National Institute of Child Health and Human Development, met in 1994. This group issued a report which recommended that both parents be included in the children's “bedtime and waking rituals, transitions to and from school, extracurricular and recreational activities” among other things.
Warshak's analysis of multiple studies failed to find support for the hypothesis that overnights with fathers has a negative outcome for children, including infants. The decade between 2001 and 2011 saw increasing acceptance of overnights among mental health professionals, courts, and parents of infants and toddlers. Policy makers should therefore consider more salient variables when making policy decisions.
The draft article was reviewed by 110 of Warshak's colleagues who provided comments and revisions which contributed to the final article. Although not everyone agreed with every aspect of the article they did unanimously endorse the article's conclusions and recommendations. My end notes and the list of 110 of Warshak's colleagues appear in my article.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
Wednesday, February 19, 2014
Successfully mediating a high conflict Indiana child custody case which has been repeatedly contested
18 February 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Yesterday was a great day. In what has become on off my top five most litigated cases the parties are in at least a brief respite after reaching accord on all outstanding issues. This case first gained worldwide attention when the Madison County Indiana judge then presiding over the case ruled that the father was unfit to parent because he became agnostic in his religious beliefs. I quickly had that matter resolved by having the Indiana Court of Appeals issue a Stay. Ultimately the unlawful order was set aside.
The mother continued to litigate and most recently sought to have father's parenting time reduced to one half hour per month supervised. Although she actually wanted his parental rights terminated. Drugs/guns Shortly before that I had written about Self Imposed Parental Alienation but apparently she hadn't read it or did care. Additionally, she had recently alleged in a Petition for an Order of Protection that father had confined her at the police station and she was afraid to be there with him around. Multiple police officers, school officials, and an employer were ready and willing to appear at the upcoming hearing on her temporary protective order. But as that and about a dozen other filings from both parents were included in the settlement which included dismissing all outstanding matters, it won't be heard.
I am an ardent supporter of mediation even when it seems hopeless. In this case it was court ordered because of the overwhelming number of pending issues. After watching the mother go on the offensive for four years, which included bringing her now husband to a parenting time exchange to physically attack the father, I didn't expect much cooperation. The father initially thought it would be a perfunctory waste of time but he said “I was pleasantly surprised and hope that its a new path that leads to some peace in our children's lives.” I was likewise stunned at the culmination of over five hours of negotiation. This mother had gone on record in 2010 saying she had no intention of being conciliatory for the benefit of the children. Yet in the end the father got parenting time on an additional day each week, the 2013 IPTG implemented and other benefits that he sought. “I am satisfied with it as long as she will follow it” he says.
The mother may be likely to do so after obtaining new counsel last year. “Aaron Freeman [attorney for mother] seemed like he was pushing for mediation.” That is in clear contrast to Mr Anthony Lawrence who rebuked three prior mediation request but did dump mother as a client in 2013. The proper selection of or omission of an attorney may be the greatest facilitator of mediation. As father noted “the people who go in with the idea that I am not going to bend could benefit by having an attorney to help convince them to compromise.” But as for father who was ready to compromise and had previously sought mediation multiple times he did not “see a need for an attorney at all.” Although he did concede that there was “no way I would have felt comfortable doing it without you.”
As a mediator myself, who specializes in high conflict parenting, I seek clarity and precision in the agreements so that each party knows exactly what they are to do. This also gives the court greater power to enforce the agreement as an ambiguous order in unenforceable.[1] In a section that the attorney mediator had prepared about extra curricular activities it made reference to parents attending the children's “games” to which I requested that “performances, recitals and any other activities consistent with the spirit of this section” be included. In a hostile parenting situation one parent could clearly raise the issue that a child's performance in the arts is not a “game.” There was also a provision that required the parties to dismiss their respecting protective orders. As the orders had already been issued by a judge, I requested that the language be changed to the parties shall each petition the court to dismiss the order because only the judge may dismiss the order.[2] Father was appreciative that the “order is more specific, it has less room for interpretation” which is critical to making the mediation worthwhile.
Overall the father felt that “it was worthwhile” Although he didn't get what he had on his agenda going in he did achieve the most important goal of mediation as he articulated. “Its not what I wanted but it is more than I had. It is the pain of mediation, we both don't get what we want but both sides need to give and take for the benefit of the children.”
For anyone who is involved in a highly litigious or high conflict post marital parenting relationship or any other contested child custody case I strongly suggest trying mediation. It may not get you to exactly where you want to be but as this father realized, “I walked away feeling like this is a start.”
Notes
[1] In order to be held in contempt for failing to comply with a court order, a party must have willfully disobeyed the order. The order must have been so clear and certain that there could be no question as to what the party must do, or not do, and so there could be no question regarding whether the order is violated. A party may not be held in contempt for failing to comply with an ambiguous or indefinite order . . .
Bandini v. Bandini, 935 N.E.2d 253, 264-65 (Ind. Ct. App. 2010) (citations and quotation marks omitted).
[2] IC 34-26-5-12 Dismissal
Sec. 12. If a petitioner:
(1) files a written request for dismissal with a court; or
(2) makes an oral request on the record to dismiss the case in open court;
the court shall without delay or any conditions dismiss the case without prejudice. [emphasis added]
As added by P.L.133-2002, SEC.56.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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